How does induction work in temporary work? — Excerpt of my master’s thesis

Jun,2016
Blog Herbak Consulting

Plea­se note: The essay publis­hed here is only a short excerpt of my 120-page master’s the­sis. The topic of the master’s the­sis is: “Con­cep­tu­al design of an onboar­ding pro­gram for tem­pora­ry workers”. The master’s the­sis recei­ved the hig­hest gra­de of 1.0 and also recei­ved a let­ter of recommendation.

If you would like to recei­ve fur­ther infor­ma­ti­on on this important topic, I look for­ward to hea­ring from you!

The employ­ment form of tem­pora­ry workers is an important com­po­nent to ensu­re the fle­xi­bi­li­ty and pro­fi­ta­bi­li­ty of a coun­try. Howe­ver, the topic of induc­tion of tem­pora­ry workers in user com­pa­nies has not been suf­fi­ci­ent­ly addres­sed in rese­arch, nor in prac­ti­ce. The­re­fo­re, this master’s the­sis aims to design an onboar­ding gui­de spe­ci­fi­cal­ly for tem­pora­ry workers that can be imple­men­ted by user com­pa­nies, taking into account the cost and time fac­tors. In order to be able to suf­fi­ci­ent­ly inves­ti­ga­te the topic, qua­li­ta­ti­ve expert inter­views were con­duc­ted with various repre­sen­ta­ti­ves* who are direct­ly invol­ved in the onboar­ding pro­cess of tem­pora­ry workers. Based on their state­ments, an onboar­ding pro­gram was con­cep­tua­li­zed that can be imple­men­ted by user com­pa­nies in a cost- and time-saving man­ner. To illus­tra­te the topic, various com­pon­ents of such an onboar­ding pro­gram were crea­ted as examples.

Due to the incre­a­sing demand of com­pa­nies for fle­xi­ble per­son­nel solu­ti­ons, the share of tem­pora­ry workers in depart­ments is steadi­ly incre­a­sing. In 2015, this form of employ­ment reached its hig­hest level to date with 951,000 tem­pora­ry workers (Bun­des­agen­tur für Arbeit, 2016). Per­ma­nent cost and time pres­su­re is promp­t­ing com­pa­nies to deploy per­son­nel quick­ly and fle­xi­b­ly. Howe­ver, the topic of onboar­ding tem­pora­ry workers has not recei­ved suf­fi­ci­ent atten­ti­on in rese­arch, nor in practice.

This intro­duc­to­ry chap­ter begins by deli­ne­a­ting the con­tent and defi­ning the basic terms. Then, wit­hin the theo­re­ti­cal-con­cep­tu­al frame­work, the rights and obli­ga­ti­ons of the par­ties invol­ved are exami­ned in order to under­stand the employ­ment model of employee lea­sing and to know the respon­si­bi­li­ties of the actors. This theo­re­ti­cal con­struct thus pro­vi­des the basis of the induc­tion plan for tem­pora­ry workers.

Chap­ter three pres­ents and exp­lains the cho­sen rese­arch method. In doing so, the qua­li­ty cri­te­ria and princi­ples of qua­li­ta­ti­ve rese­arch are dis­cus­sed in more detail. This chap­ter also exp­lains how the inter­views were con­duc­ted, as well as their sub­se­quent data ana­ly­sis accord­ing to May­ring (2002).

The fourth chap­ter sum­ma­ri­zes the results from the inter­views. The focus is on sur­pri­sing fin­dings and state­ments from the experts that are use­ful for the onboar­ding program.

In the fifth chap­ter, the onboar­ding con­cept for tem­pora­ry workers is dis­tin­guis­hed from a “clas­sic” onboar­ding pro­gram for future per­ma­nent employees. Sub­se­quent­ly, the onboar­ding pro­gram is pre­sen­ted as an examp­le from the con­cep­ti­on pha­se to the end of the assign­ment of the tem­pora­ry workers. The dif­fi­cul­ties that can ari­se during the crea­ti­on and imple­men­ta­ti­on of such a con­cept are also dealt with in this chap­ter. Final­ly, recom­men­da­ti­ons for action for user com­pa­nies are pre­sen­ted, which emer­ged from the dis­cus­sions with the experts. 

The sixth and final chap­ter sum­ma­ri­zes the results of this stu­dy and pro­vi­des an out­look on future deve­lo­p­ments for the induc­tion of tem­pora­ry workers.

Defi­ni­ti­on and con­cep­tu­al delimitation

For the suc­cess­ful con­cep­tu­al design and imple­men­ta­ti­on of an onboar­ding con­cept for tem­pora­ry workers, a com­pre­hen­si­ve exami­na­ti­on of the topic of employee lea­sing (ANÜ) is necessa­ry. To this end, the fun­da­men­tal terms must first be dif­fe­ren­tia­ted from one ano­t­her and their use exp­lai­ned in the theo­re­ti­cal context.

1.1.1 Employee leasing

The com­mer­cial hiring out of workers has many names in busi­ness prac­ti­ce. Thus, the terms ran­ge from ANÜ to per­son­nel lea­sing to tem­pora­ry work to agen­cy work (Gut­mann & Kili­an, 2013; Ulb­er, 2015). Often, the­se terms are used syn­ony­mous­ly in their mea­ning, but not in their inter­pre­ta­ti­on. While acting tem­pora­ry employ­ment agen­ci­es try to estab­lish the term tem­pora­ry work, tra­de uni­ons deli­ber­ate­ly use the term tem­pora­ry work as well as tem­pora­ry agen­cy workers. The goal of the actors here is to assign a cer­tain posi­ti­ve or nega­ti­ve inter­pre­ta­ti­on to this work model with the help of the con­no­ta­ti­on of the terms (Gut­mann & Kilian).

The term “tem­pora­ry employ­ment”, which is con­sist­ent­ly used by tra­de uni­ons, is aimed at the defi­ni­ti­on of the term “loan” (Hal­den­wang, 2008), accord­ing to which, under Sec­tion 589 of the Ger­man Civil Code, a com­mo­di­ty is loaned to a third par­ty free of char­ge. Alt­hough this does not app­ly to ANÜ, the term “tem­pora­ry employ­ment” has nevertheless beco­me wide­ly estab­lis­hed in Ger­man usa­ge and is used in the Ger­man Tem­pora­ry Employ­ment Act (AÜG) to the extent that the actors invol­ved are refer­red to as tem­pora­ry workers, as the ope­ra­ting com­pa­ny and as the lender.

The hiring com­pa­nies, on the other hand, try to estab­lish the neu­tral term of tem­pora­ry employ­ment. The rea­son given for this usa­ge is that it is a cohe­rent trans­la­ti­on of the inter­na­tio­nal­ly used term of “tem­pora­ry work” (Gut­mann & Kili­an, 2013). Par­al­lel to the expres­si­on of tem­pora­ry work, the hiring com­pa­nies the­re­fo­re refer to their employees as tem­pora­ry workers (Schwa­ab, 2009).

The form of employ­ment its­elf is refer­red to as ANÜ in the AÜG. Alt­hough the AÜG does not con­tain a con­cre­te defi­ni­ti­on of the term ANÜ, Sec­tion 1 (1) sen­ten­ces 1 and 2 AÜG pro­vi­des a descrip­ti­on of the pro­cess of AÜN: “Employ­ers who, as len­ders, wish to pro­vi­de third par­ties (Ein­satz­be­trieb n) with employees (tem­pora­ry workers) for the per­for­mance of work as part of their eco­no­mic acti­vi­ty requi­re per­mis­si­on. The trans­fer of employees to the com­pa­ny of assign­ment is tem­pora­ry [empha­sis added by the author].”

Sin­ce this para­graph led to uncer­tain­ties in ope­ra­tio­nal prac­ti­ce, it was con­creti­zed by the Federal Labor Court. Thus, accord­ing to the case law of the Federal Labor Court of 03.12.1997, ANÜ exists if an employ­er makes his employees avail­ab­le to third par­ties, on the basis of an agree­ment, accord­ing to which the user com­pa­ny can use the­se employees as if they were its own per­son­nel (Pol­lert, 2011). Ano­t­her cha­rac­te­ris­tic of this pro­cess is that the assign­ment must be tem­pora­ry. Howe­ver, the law does not pro­vi­de any infor­ma­ti­on at this point on how the term tem­pora­ry is defi­ned. In the past, this legal gray area led to gre­at uncer­tain­ty both on the part of the tem­pora­ry employ­ment agen­cy and espe­cial­ly on the part of the user com­pa­ny, sin­ce the works coun­cil can refu­se its con­sent to the use of LAK if the assign­ment is lon­ger than tem­pora­ry. Accord­ing to cur­rent case law of the Federal Labor Court, a tem­pora­ry assign­ment is unders­tood to mean that the assign­ment must be “limi­ted in time in advan­ce” (Bun­des­ar­beits­ge­richt, 2013). Accord­in­gly, this term has not been fixed to a tem­po­ral dimen­si­on so far and LACs can be employ­ed by a user enter­pri­se for several years without vio­la­ting the tem­pora­ry natu­re of ANÜ (Pol­lert, 2011). Howe­ver, this pro­blem is to be sol­ved with the new draft law of the Federal Government as of 01 Janu­a­ry 2017. With the amend­ment of the AÜG, the maxi­mum assign­ment peri­od of LAC at the same user com­pa­ny is to be limi­ted to 18 mon­ths (Bun­des­re­gie­rung, 2016). Excep­ti­ons are still pos­si­ble through com­pa­ny agree­ments or collec­ti­ve bar­gai­ning clau­ses, but only up to a maxi­mum dura­ti­on of 24 mon­ths (Bun­des­re­gie­rung, 2016). On the basis of the explana­ti­ons pre­sen­ted, the term ANÜ is used below to descri­be this employ­ment model, in accordance with §1 para.1 sen­ten­ces 1 and 2 AÜG.

In addi­ti­on to the defi­ni­ti­on of ANÜ, a dis­tinc­tion must also be made bet­ween com­mer­cial ANÜ, the so-cal­led non-genui­ne ANÜ, and genui­ne ANÜ, the occa­sio­nal ANÜ. The term “com­mer­cial tem­pora­ry employ­ment agen­cy” descri­bes a pro­cess wher­eby an employ­er “hires out” employees to ano­t­her com­pa­ny in return for remu­ne­ra­ti­on. The focus here is on the inten­ti­on to make a pro­fit (Gut­mann & Kili­an, 2013). This means that the pur­po­se of ANÜ is for the hiring com­pa­ny to achie­ve a mone­ta­ry bene­fit, which can also take the form of com­pe­ti­ti­ve advan­ta­ges (Pol­lert, 2011). Sin­ce the laws of the AÜG exclu­si­ve­ly regu­la­te the use of non-genui­ne ANÜ and the expert inter­views con­duc­ted in this the­sis are all rela­ted to com­mer­cial ANÜ, the term ANÜ will be used syn­ony­mous­ly with com­mer­cial hiring out in the following.

Against the back­drop of a wide ran­ge of employ­ment oppor­tu­nities, ANÜ is just one of many opti­ons that enab­le employees to inte­gra­te the fac­tor of work into their lives on an indi­vi­du­al basis. In Ger­ma­ny, the­se dif­fe­rent work models are divi­ded into typi­cal and aty­pi­cal forms of employ­ment (Sta­tis­ti­sches Bun­des­amt, 2010). Accord­in­gly, a typi­cal form of employ­ment is unders­tood to be the so-cal­led nor­mal employ­ment rela­ti­ons­hip, while aty­pi­cal employ­ment devia­tes from this employ­ment rela­ti­ons­hip. The nor­mal employ­ment rela­ti­ons­hip is cha­rac­te­ri­zed by fixed cri­te­ria such as per­ma­nent and unli­mi­ted full-time employ­ment, the pos­si­bi­li­ty of collec­ti­ve repre­sen­ta­ti­on of inte­rests through works coun­cils and tra­de uni­ons, and a regu­lar living wage, inclu­ding inte­gra­ti­on into the sta­tu­to­ry social secu­ri­ty sys­tem (Oschmi­an­sky, Kühl & Ober­mei­er, 2014).

Con­se­quent­ly, all employees who, due to their employ­ment rela­ti­ons­hip, have no pos­si­bi­li­ty of being collec­tively repre­sen­ted, but also employees who are not employ­ed for an inde­fi­ni­te peri­od of time or who work 20 hours or less per week, are auto­ma­ti­cal­ly assi­gned to an aty­pi­cal form of employ­ment. Moreo­ver, the Federal Sta­tis­ti­cal Office expli­ci­tly exclu­des LAC from a nor­mal employ­ment rela­ti­ons­hip in its defi­ni­ti­on, sin­ce “A nor­mal employee […] works direct­ly in the com­pa­ny with which he or she has an employ­ment con­tract. This is not the case for tem­pora­ry workers who are lent out to other com­pa­nies by their employ­er — the tem­pora­ry employ­ment agen­cy.” (Federal Sta­tis­ti­cal Office, 2015). Accord­in­gly, in addi­ti­on to ANÜ, tem­pora­ry employ­ment rela­ti­ons­hips, part-time work and unde­cla­red work, among others, are also clas­si­fied as aty­pi­cal employ­ment rela­ti­ons­hips. In this way, legal employ­ment rela­ti­ons­hips are pla­ced on an equal foo­ting with ille­gal forms of employ­ment such as unde­cla­red work. Alt­hough the Federal Sta­tis­ti­cal Office (2010) also makes it clear that aty­pi­cal employ­ment can be deli­ber­ate­ly cho­sen in order to bet­ter recon­ci­le per­so­nal and pro­fes­sio­nal requi­re­ments, it also points out that aty­pi­cal employ­ment rela­ti­ons­hips often can­not meet the requi­re­ment of being able to finan­ce the live­li­hood of employees (Sta­tis­ti­sches Bun­des­amt, 2010).

The fact that such a dis­tinc­tion bet­ween nor­mal employ­ment rela­ti­ons­hips and aty­pi­cal employ­ment is no lon­ger appro­pria­te and needs to be rede­fi­ned beco­mes clear when loo­king at cur­rent sta­tis­tics, as shown in table 1.

Table 1

Share of aty­pi­cal employ­ment in total employment.

Notes. Own pre­sen­ta­ti­on based on: Federal Sta­tis­ti­cal Office (2016) at: https://www.destatis.de/DE/ZahlenFakten/GesamtwirtschaftUmwelt/Arbeitsmarkt/Erwerbstaetigkeit/TabellenArbeitskraefteerhebung/AtypKernerwerbErwerbsformZR.html.

Accord­ing to a stu­dy con­duc­ted by the Hans Böck­ler Foun­da­ti­on in 2015, the ratio of aty­pi­cal employees was as high as 39% in 2015, with 14,126 peop­le (Hans Böck­ler Foun­da­ti­on, 2015). This means that almost every fourth employee has an aty­pi­cal employ­ment rela­ti­ons­hip. Part-time work and tem­pora­ry work have shown par­ti­cu­lar growth. The­se dif­fe­ren­ces in the sta­tis­tics are due to dif­fe­ren­ces in data collec­tion. While the Federal Sta­tis­ti­cal Office only con­si­ders working hours of less than 21 hours as part-time employ­ment, the Hans Böck­ler Foun­da­ti­on alrea­dy clas­si­fies every shor­ter working week as part-time com­pa­red to full-time employees (Hans Böck­ler Foun­da­ti­on, 2015).

Des­pi­te the dis­crepan­ci­es in the record­ing of aty­pi­cal employ­ment rela­ti­ons­hips, a long-term incre­a­se in this form of employ­ment can­not be denied. In a world that is in a sta­te of per­ma­nent chan­ge, which also affects employ­ment, the ques­ti­on ari­ses as to what extent the so-cal­led nor­mal employ­ment rela­ti­ons­hip real­ly still repres­ents the norm today. Cur­rent stu­dies show that espe­cial­ly the fle­xi­ble com­pon­ents of work, such as chan­ging work loca­ti­ons, per­for­mance-lin­ked remu­ne­ra­ti­on sys­tems and chan­ging work tasks, in the sen­se of so-cal­led upward mobi­li­ty, tend to incre­a­se stron­gly (Mins­sen, 2012). Howe­ver, it is not only work as such that is beco­m­ing incre­a­singly fle­xi­ble; employees them­sel­ves are also con­tri­bu­ting to this deve­lo­p­ment by spe­ci­fi­cal­ly deman­ding employ­ment rela­ti­ons­hips that allow them a gre­at deal of free­dom in shaping their work (Federal Minis­try for Fami­ly Affairs, Women, Seni­or Citi­zens and Youth, 2015; Insti­tut für Demo­sko­pie Allens­bach, 2013).

1.1.1 Actors in the Tem­pora­ry Employ­ment Business

Cha­rac­te­ris­tic for ANÜ are not only the con­trac­tu­al rela­ti­ons bet­ween the actors, but also the sub­ject of the con­tract its­elf. Accord­in­gly, in the case of ANÜ, the LAK, or their labor, are the sub­ject of the con­tract (Lind­ner-Loh­mann, Loh­mann & Schir­mer, 2012). Due to the­se par­ti­cu­la­ri­ties, the­re is also no uni­form use of terms for the actors wit­hin ANÜ. Rather, the per­spec­ti­ve of the respec­ti­ve par­ties invol­ved deter­mi­nes the term used, as can be seen in Fig. 1.

Fig. 1: Per­spec­ti­ve ter­mi­no­lo­gy in ANÜ

(Source: Own repre­sen­ta­ti­on based on: Gut­mann, J. & Kili­an, S., 2013, p.165).

Accord­in­gly, from the per­spec­ti­ve of the tem­pora­ry employ­ment agen­ci­es, the LAK are their own employees who per­form their work at the user com­pa­ny. The user com­pa­ny, on the other hand, is the cus­to­mer that requests the requi­red human resour­ces from the tem­pora­ry employ­ment agen­cy. The com­pa­ny that pro­vi­des per­son­nel, on the other hand, calls its­elf a tem­pora­ry employ­ment agency.

For the LAK, mean­while, the pic­tu­re is dif­fe­rent. For them, the tem­pora­ry employ­ment agen­cy is the employ­er, but the user com­pa­ny is the com­pa­ny whe­re the work is per­for­med. Whe­ther LACs feel more like employees of the tem­pora­ry employ­ment agen­cy or of the user com­pa­ny dif­fers from LAC to LAC (Thiel, 2016). The decisi­ve fac­tor here is not only the este­em in which the LAC is held, but also the moti­ve for pur­suing employ­ment in the tem­pora­ry employ­ment agen­cy. After all, if employees have con­scious­ly cho­sen this type of employ­ment, they are more likely to feel that they belong to the tem­pora­ry employ­ment agen­cy, as this form of employ­ment fits bet­ter with their life plan (Härtl, 2016). Howe­ver, if they would like to use ANÜ in order to obtain a per­ma­nent posi­ti­on in a spe­ci­fic hirer com­pa­ny, then they are more likely to feel that they belong to the user com­pa­ny, as in this case ANÜ is only the means to an end (Breit­schei­del, 2010). Chap­ter 5.5.1 “Com­mit­ment dilem­ma” takes a clo­ser look at this problem.

From the per­spec­ti­ve of the user com­pa­ny, the tem­pora­ry employ­ment agen­cy is the per­son­nel ser­vice pro­vi­der that sup­plies the right per­son­nel at the right time in the requi­red num­bers. The LAC, on the other hand, are the exter­nal employees for the user com­pa­ny (Gut­mann & Kili­an, 2013).

Sin­ce the pre­sent work is based on the app­li­ca­ble legal pro­vi­si­ons and does not repre­sent a poli­ti­cal posi­tio­ning, neit­her on the uni­on side nor on the employee lea­sing side, the use of ter­mi­no­lo­gy for the par­ties invol­ved accord­ing to the AÜG will fol­low. In the fol­lowing, com­pa­nies that use ANÜ for per­son­nel fle­xi­bi­liz­a­ti­on are the­re­fo­re refer­red to as user com­pa­nies. Par­al­lel to this, the employees who work wit­hin the frame­work of ANÜ are refer­red to as LAK. Con­se­quent­ly, com­pa­nies that offer tem­pora­ry employ­ment ser­vices should be refer­red to as hiring com­pa­nies. In order to avoid con­fu­si­on, howe­ver, the­se com­pa­nies are refer­red to below as tem­pora­ry employ­ment agencies.

1.1.2 The con­cept of onboarding

In the lite­ra­tu­re, the term onboar­ding is not used selec­tively (Feld­man, 1981). Thus, onboar­ding is unders­tood by some aut­hors as syn­ony­mous with the term inte­gra­ti­on (Schmidt, 2014) as well as with induc­tion (Bren­ner & Bren­ner, 2001). The­re­fo­re, the terms onboar­ding, induc­tion as well as inte­gra­ti­on are also used syn­ony­mous­ly in this paper. Howe­ver, the imple­men­ta­ti­on of inte­gra­ti­on mea­su­res is not limi­ted to the work area of the new employees. Rather, onboar­ding must be unders­tood as a holistic pro­cess that takes place in par­al­lel at several cor­po­ra­te levels (Engel­hardt, 2006). Accord­in­gly, the busi­ness are­as invol­ved inclu­de not only the human resour­ces depart­ment but also the manage­ment (Lohaus & Haber­mann, 2015), as well as the respec­ti­ve mana­ger and the new employee’s direct col­leagues (Dra­voj, 2016). Wit­hin the onboar­ding pro­cess, a dis­tinc­tion is also made bet­ween pro­fes­sio­nal and social inte­gra­ti­on (Blum, 2010). While the focus of pro­fes­sio­nal inte­gra­ti­on is on lear­ning the work task and the know­ledge requi­red for it, the goal of social inte­gra­ti­on is the accep­t­ance into the team as well as the adop­ti­on of the cor­po­ra­te cul­tu­re (Becker, 2013). Howe­ver, alt­hough the company’s efforts are cru­cial for the suc­cess of onboar­ding (Gut­mann & Kili­an, 2013), the employees them­sel­ves are also respon­si­ble for the suc­cess of their onboar­ding. This is becau­se, in addi­ti­on to the tech­ni­cal qua­li­fi­ca­ti­ons of the new employees, their cogni­ti­ve as well as emo­tio­nal abi­li­ties also deter­mi­ne the suc­cess­ful cour­se of the onboar­ding pro­gram (Bren­ner & Bren­ner, 2001).

The socia­liz­a­ti­on of future employees plays a cen­tral role here. In this con­text, socia­liz­a­ti­on means the adap­t­ati­on to cer­tain pro­ces­ses and acti­vi­ties, but also the align­ment of expec­ta­ti­ons (Lohaus & Haber­mann, 2015). In addi­ti­on to pre-socia­liz­a­ti­on, anti­ci­pa­to­ry socia­liz­a­ti­on is also cru­cial for suc­cess­ful onboar­ding. This term covers all expe­ri­en­ces that are decisi­ve for the deve­lo­p­ment of per­so­nal values and norms (Engel­hardt, 2006). Ear­ly expe­ri­en­ces that took place in the person’s immedia­te envi­ron­ment are par­ti­cu­lar­ly for­ma­ti­ve. Based on the­se expe­ri­en­ces, not only are values and norms for­med, but the person’s per­so­na­li­ty is defi­ned by the situa­tions expe­ri­en­ced, which is expres­sed in lan­guage, man­ners, and habits, among other things (Neu­ber­ger, 1991).

This type of socia­liz­a­ti­on descri­bes the peri­od befo­re ent­e­ring an orga­niz­a­ti­on up to the first day on the job (Feld­man, 1981; Neu­ber­ger, 1991). Based on pre-exis­ting value pat­terns, cer­tain expec­ta­ti­ons about future employ­ment deve­lop during the pre-ent­ry peri­od. This “pre-ent­ry pha­se” invol­ves the align­ment of one’s values with tho­se of the orga­niz­a­ti­on. Alt­hough the­re is only spo­ra­dic con­ta­ct bet­ween the future employees and the com­pa­ny in this pha­se, this is per­cei­ved and eva­lua­ted par­ti­cu­lar­ly inten­si­ve­ly on the part of the employees, sin­ce they do not yet have any other infor­ma­ti­on with which their own values can be com­pa­red. If the company’s values do not match tho­se of the future employees or if the com­pa­ny does not behave in accordance with their expec­ta­ti­ons, suc­cess­ful induc­tion is jeo­par­di­zed (Engel­hardt, 2006). This know­ledge is of enor­mous impor­t­ance, espe­cial­ly for the crea­ti­on of an onboar­ding gui­de, sin­ce the foun­da­ti­on for a suc­cess­ful inte­gra­ti­on is alrea­dy laid here (Engel­hardt). The know­ledge of anti­ci­pa­to­ry socia­liz­a­ti­on should the­re­fo­re be used to posi­tively influ­ence integration. 

The goal of a suc­cess­ful onboar­ding con­cept is the full inte­gra­ti­on of new employees. In this pro­cess, the new employees are to be trans­for­med from so-cal­led com­pa­ny exter­nals to com­pa­ny inter­nals (Bau­er, Bod­ner, Erdo­gan, Tru­xil­lo & Tucker, 2007). This so-cal­led “meta­mor­pho­sis pha­se” (Noe, Hol­len­beck, Ger­hart & Wright, 2012) is con­si­de­red com­ple­te when new employees are inte­gra­ted to such an extent that they are no lon­ger reco­gni­zed as such. Con­se­quent­ly, onboar­ding can only be pur­po­se­ful if both the new employees and the orga­niz­a­ti­on want the onboar­ding to take place in the first place (Becker, 2013). In the fol­lowing, the­re­fo­re, the term onboar­ding is unders­tood in this mas­ter the­sis as a sys­te­ma­tic pro­cess (Becker, 2013) that enab­les employees to work suc­cess­ful­ly in the new orga­niz­a­ti­on (Bau­er & Erdo­gan, 2011) and also makes them feel wel­co­me (Watz­ka, 2014).

Con­trac­tu­al rights and obli­ga­ti­ons of the par­ties involved

1.1.3 Tri­an­gu­lar relationship

As has alrea­dy been pre­sen­ted, an ANÜ exists when an employ­er tem­pora­ri­ly hires out its employees to third par­ties (Ulb­er, 2015). Due to the spe­cial con­trac­tu­al con­stel­la­ti­on, the­re are over­laps in the are­as of respon­si­bi­li­ty, which often leads to pro­blems in ope­ra­tio­nal prac­ti­ce (Böhm, Hen­ning & Popp, 2013; Gut­mann & Kili­an, 2013). Sub­se­quent­ly, the con­trac­tu­al rela­ti­ons­hips wit­hin the tri­an­gu­lar rela­ti­ons­hip, as well as the asso­cia­ted rights and obli­ga­ti­ons bet­ween the actors, will the­re­fo­re be explained.

The pre­re­qui­si­te of the tri­an­gu­lar rela­ti­ons­hip is the writ­ten con­tract bet­ween the tem­pora­ry employ­ment agen­cy and the user com­pa­ny as requi­red by §12 AÜG (Gut­mann & Kili­an, 2013). The scope of the right to issue inst­ruc­tions to the user com­pa­ny is deri­ved from this so-cal­led employee lea­sing con­tract. Alt­hough LACs con­tri­bu­te their labor wit­hin the user com­pa­ny, the­re are no con­trac­tu­al rela­ti­ons­hips bet­ween the­se two actors, but the­re are mutu­al rights and obli­ga­ti­ons (Ulb­er, 2015). Accord­in­gly, the com­pa­ny of assign­ment, i.e. the user com­pa­ny, is obli­ga­ted to the LAC in the area of occup­a­tio­nal health and safe­ty pur­suant to Sec­tion 11 (6) Sen­tence 1 AÜG to the extent that their acti­vi­ties are sub­ject to the sta­tu­to­ry occup­a­tio­nal health and safe­ty regu­la­ti­ons app­li­ca­ble in the user com­pa­ny. The duty of care, on the other hand, remains with the tem­pora­ry employ­ment agen­cy, even if the LAK do not per­form their work in its com­pa­ny orga­niz­a­ti­on (Ulb­er). Direct employ­ment con­tract rela­ti­ons­hips thus ari­se only from the employ­ment rela­ti­ons­hip bet­ween the LAK and the tem­pora­ry employ­ment agen­cy, i.e. the direct employ­er (Ulb­er). This employ­ment con­tract gives rise to mutu­al claims and obli­ga­ti­ons bet­ween the par­ties to the contract.

Due to this spe­cial situa­ti­on, which effec­tively con­fronts the LAK with two employ­ers, it is necessa­ry for the right to issue inst­ruc­tions to be split bet­ween the tem­pora­ry employ­ment agen­cy and the user com­pa­ny. In the case of a tem­pora­ry employ­ment agen­cy, this is done by trans­fer­ring the right of direc­tion from the tem­pora­ry employ­ment agen­cy to the user com­pa­ny. It should be noted, howe­ver, that in accordance with Sec­tion 613 sen­tence 2 of the Ger­man Civil Code (BGB), such a trans­fer of the right of direc­tion to a third par­ty is only valid with the pri­or con­sent of the employee. The employ­ment con­tract signed by the employee with the tem­pora­ry employ­ment agen­cy is regar­ded as con­sent (Pol­lert, 2011). On the basis of this con­trac­tu­al rela­ti­ons­hip, employ­ment con­tract rights and obli­ga­ti­ons ari­se only bet­ween the tem­pora­ry employ­ment agen­cy and the LAC. Howe­ver, due to the trans­fer of the right to issue inst­ruc­tions, the user com­pa­ny, as the de fac­to employ­er, also has manage­ment rights in con­nec­tion with the per­for­mance of the acti­vi­ty (Ulb­er, 2015). Howe­ver, the right of direc­tion of the user com­pa­ny only extends to the acti­vi­ties spe­ci­fied in the employee lea­sing con­tract, to the dura­ti­on of the working hours and to the place of work (Pol­lert; Ulb­er). For all other are­as of acti­vi­ty, the sole right of direc­tion remains with the tem­pora­ry employ­ment agen­cy (Pol­lert).

This ent­ails some con­se­quen­ces under labor law that dif­fer from the regu­lar employ­er-employee rela­ti­ons­hip. Alt­hough the employees are employees of the tem­pora­ry employ­ment agen­cy on the basis of their employ­ment con­tract with the agen­cy, they per­form their work in a dif­fe­rent com­pa­ny, name­ly in the user com­pa­ny. Due to this spe­cial situa­ti­on, some dif­fi­cul­ties ari­se in the imple­men­ta­ti­on of the employ­ment con­tract obli­ga­ti­ons. In addi­ti­on to orga­niz­a­tio­nal hurd­les on the part of the hiring com­pa­ny, such as the risk assess­ment of the work­place, the­re are also social pro­blems. Con­stant­ly chan­ging assign­ment com­pa­nies (Bor­ne­was­ser, 2013; Schrö­der, 2010) requi­re LAC to per­ma­nent­ly adapt to their new col­leagues, as well as to the respec­ti­ve work task (Breit­schei­del, 2010; Schrö­der, 2010). In addi­ti­on to this bur­den, the­re is also repeated social exclu­si­on of LACs on the part of the core work­for­ce (Bol­der, Nae­vecke & Schul­te, 2005; Breit­schei­del, 2010; Thiel, 2016).

Alt­hough a lar­ge num­ber of equa­li­ty mea­su­res have alrea­dy been crea­ted with the help of §13 b AÜG, the­re are still major defi­ci­ts in the imple­men­ta­ti­on of com­pre­hen­si­ve and, abo­ve all, social inclu­si­on (Breit­schei­del, 2010). In order to under­stand the pro­blem of the often lacking inte­gra­ti­on of LAC, it is necessa­ry to know the respec­ti­ve respon­si­bi­li­ties, rights and duties of all par­ties involved.

1.1.4 Rights and duties of tem­pora­ry employ­ment agencies

Tem­pora­ry employ­ment agen­ci­es occu­py a key posi­ti­on in ANÜ due to the tri­an­gu­lar rela­ti­ons­hip. As an employ­er for LAK on the one hand and as a ser­vice pro­vi­der for the hirer on the other, they repre­sent an inter­face in this con­trac­tu­al rela­ti­ons­hip and must ful­fill the duties of a ser­vice pro­vi­der in addi­ti­on to the employ­er duties (Gut­mann & Kili­an, 2013).

Sin­ce tem­pora­ry employ­ment agen­ci­es act as con­trac­tu­al employ­ers for the LAC, they are respon­si­ble for com­ply­ing with gene­ral employ­er obli­ga­ti­ons, such as paying remu­ne­ra­ti­on, appro­ving lea­ve, and the obli­ga­ti­on to pro­vi­de refe­ren­ces (Ulb­er, 2015). The fact that the employees do not per­form their ser­vices in the ope­ra­tio­nal orga­niz­a­ti­on of the de fac­to employ­er is irrele­vant (Ulb­er). Sin­ce the focus of this master’s the­sis is on the spe­ci­fics of the employer’s con­trac­tu­al obli­ga­ti­ons in the con­text of tem­pora­ry employ­ment, the gene­ral employ­er obli­ga­ti­ons, such as the obli­ga­ti­on to pay wages and pro­vi­de refe­ren­ces, will not be dis­cus­sed in detail here. Ins­tead, the spe­cial fea­tures of the employ­ment con­tract obli­ga­ti­ons in the con­text of tem­pora­ry employ­ment agen­ci­es will be ela­bo­ra­ted and presented.

Sin­ce tem­pora­ry employ­ment agen­ci­es have no direct influ­ence on the pre­vai­ling con­di­ti­ons in the ope­ra­tio­nal orga­niz­a­ti­on of the assign­ment com­pa­ny, they are obli­ged to car­ry out an assess­ment of the work­place in order to com­ply with Sec­tion 5 (1) of the Occup­a­tio­nal Health and Safe­ty Act (Arb­SchG). To this end, the place of deploy­ment of the LAK must be che­cked for pos­si­ble hazards and, in accordance with Sec­tion 12 (2) of the Arb­SchG, appro­pria­te safe­ty inst­ruc­tion must be pro­vi­ded. In addi­ti­on, per­so­nal pro­tec­ti­ve equip­ment is usual­ly pro­vi­ded by the tem­pora­ry employ­ment agen­cy (Thiel, 2016), unless other­wi­se agreed in the tem­pora­ry employ­ment con­tract (Drey­er, 2009). The fact that the com­pa­nies in which tem­pora­ry workers are deploy­ed fre­quent­ly chan­ge wit­hin a short peri­od of time (Schä­fer, 2009) and, as a result, the acti­vi­ties chan­ge, is a spe­cial fea­ture of tem­pora­ry employ­ment agen­ci­es that must be taken into account. In addi­ti­on to the safe­ty inst­ruc­tions, the so-cal­led basic exami­na­ti­ons must also be con­ti­nu­al­ly adap­ted to the employees’ new work­pla­ces in accordance with § 3 of the Ordi­nan­ce on Occup­a­tio­nal Health Pre­cau­ti­ons. Howe­ver, the user com­pa­ny is also respon­si­ble for the occup­a­tio­nal safe­ty of the LAK. Sec­tion 11 (6) of the Ger­man Tem­pora­ry Employ­ment Act (AÜG) sti­pu­la­tes that LAK must be infor­med and inst­ruc­ted by the user com­pa­ny about hazards ari­sing from their area of work. Des­pi­te this sup­ple­men­ta­ry regu­la­ti­on, the majo­ri­ty of respon­si­bi­li­ty for occup­a­tio­nal health and safe­ty remains with the tem­pora­ry employ­ment agen­cy. In con­clu­si­on, it can be said that the tem­pora­ry employ­ment agency’s occup­a­tio­nal health and safe­ty obli­ga­ti­ons dif­fer only slight­ly from the regu­lar employ­er obli­ga­ti­ons of a nor­mal employ­ment rela­ti­ons­hip. Nevertheless, the­re is an incre­a­sed poten­ti­al for dan­ger in this form of employ­ment becau­se the respon­si­bi­li­ties bet­ween the two com­pa­nies are not clear­ly defi­ned. The­re­fo­re, the legis­la­tor has pro­vi­ded for mutu­al respon­si­bi­li­ty in the area of occup­a­tio­nal health and safe­ty, as well as the man­da­to­ry natu­re of the­se duties on the part of the tem­pora­ry employ­ment agen­cy. The man­da­to­ry natu­re of the duties of care is regu­la­ted in Sec­tion 619 of the Ger­man Civil Code (BGB). This means that tem­pora­ry employ­ment agen­ci­es have no pos­si­bi­li­ty of trans­fer­ring the duty of care, even par­ti­al­ly, to the user com­pa­ny. The tem­pora­ry employ­ment agency’s com­pli­an­ce with the duty of care is the­re­fo­re a spe­cial fea­ture of tem­pora­ry employ­ment agen­ci­es, as it is requi­red to ful­fill the same duties as an employ­er for its per­ma­nent workforce.

In addi­ti­on to the duty of care, the tem­pora­ry employ­ment agen­cy also bears the employ­er risk in accordance with Sec­tion 1 (2) AÜG. The decisi­ve fac­tor in the allo­ca­ti­on of employ­er risk is which con­trac­tu­al part­ner assu­mes the risk of com­pen­sa­ting the LAK during non-assign­ment peri­ods (Pol­lert, 2011). This func­tion is par­ti­cu­lar­ly important in ANÜ (Gut­mann & Kili­an, 2013), becau­se tem­pora­ry employ­ment agen­ci­es, as sup­pliers of per­son­nel, are only infor­med very late about cru­cial decisi­ons of the user com­pa­nies. Often, only the infor­ma­ti­on on whe­ther to incre­a­se or decre­a­se staff is pas­sed on to the tem­pora­ry employ­ment agen­ci­es. As a result, fluc­tua­tions in orders are expe­ri­en­ced as extre­me­ly short-term, which enor­mous­ly limits the opti­ons for respon­ding to this situa­ti­on with sui­ta­ble working time models. For this rea­son, staf­fing agen­ci­es are depen­dent on the user com­pa­nies and have only mini­mal lee­way to respond to the cur­rent order situa­ti­on (Schrö­der, 2010). This so-cal­led “bull­whip effect” (Lee, Pad­man­ab­han & Whang, 1997) means that tem­pora­ry staf­fing firms are sub­ject to very dyna­mic order plan­ning. In order to nevertheless ful­fill the orders in the best pos­si­ble way, they make exten­si­ve use of crea­ted per­son­nel pools, as well as the instru­ment of working time accounts (Breit­schei­del, 2010). Howe­ver, fle­xi­ble staff plan­ning can­not always com­pen­sa­te for the fluc­tua­tions of the user com­pa­nies. Often, LACs are can­ce­led by the hiring com­pa­ny at short noti­ce, or a plan­ned assign­ment of several mon­ths is ter­mi­na­ted after only a few days (Breit­schei­del). The risk of this high degree of fle­xi­bi­li­ty is bor­ne by the tem­pora­ry employ­ment agen­cy. Due to the employer’s risk, it is obli­ged to find a new assign­ment for the LAK in accordance with the acti­vi­ties spe­ci­fied in the employ­ment con­tract. If this is not suc­cess­ful, the hiring com­pa­ny is obli­ged to com­pen­sa­te the LAK for the time they are not deploy­ed (Pol­lert, 2011). Fol­lowing a ruling by the Ber­lin-Bran­den­burg Regio­nal Labor Court, the pre­vious­ly com­mon prac­ti­ce of off­set­ting the minus hours resul­ting from non-ope­ra­tio­nal time against the LAK’s plus hours was deemed inad­mis­si­ble (Hau­fe Online Redak­ti­on, 2015; Schrö­der, 2010). Such an approach would shift the entre­pre­neu­ri­al risk to the LAK (Lan­des­ar­beits­ge­richt Ber­lin-Bran­den­burg, 2014; Schrö­der). Thus, the employ­er risk the­re­fo­re has a spe­cial signi­fi­can­ce in ANÜ. In addi­ti­on to the employ­er risk, the tem­pora­ry employ­ment agen­cy also has the obli­ga­ti­on under Sec­tion 11 (2) AÜG to hand over a leaf­let from the Employ­ment Agen­cy upon con­clu­si­on of the con­tract. This leaf­let sum­ma­ri­zes the rights and obli­ga­ti­ons of tho­se invol­ved in tem­pora­ry employment.

Final­ly, equal tre­at­ment in accordance with Sec­tion 75 (1) of the Works Con­sti­tu­ti­on Act (BetrVG) must be men­tio­ned, which grants every employee the right to equal tre­at­ment. This princip­le is much more dif­fi­cult to imple­ment in tem­pora­ry employ­ment than in other forms of employ­ment. The con­stant­ly chan­ging loca­ti­ons whe­re LAC are deploy­ed (Breit­schei­del, 2010; Schä­fer, 2009), as well as the asso­cia­ted chan­ging acti­vi­ties, make equal tre­at­ment dif­fi­cult not only in the user com­pa­ny, but also wit­hin the tem­pora­ry employ­ment agen­cy. This is becau­se it is not always easy to com­ply with the princip­le of equal tre­at­ment due to the dyna­mic deploy­ment of per­son­nel (Thiel, 2016; Ulb­er, 2015). Thus, the per­ma­nent­ly one-sided allo­ca­ti­on of cer­tain assign­ments to selec­ted groups of employees also leads to discri­mi­na­ti­on against employees. For examp­le, LAC who have a car tend to be loaned out to far-away cli­ent com­pa­nies more often than is the case with non-moto­ri­zed employees (Breit­schei­del, 2010). In par­al­lel with this approach, the per­for­mance of one-sided acti­vi­ties, e.g. hea­vy phy­si­cal work, is often dis­tri­bu­t­ed uni­la­te­ral­ly among employees (Ulb­er, 2015). As a result, the­se LAC are often expo­sed to a con­stant­ly hig­her load than their col­leagues over a long peri­od of time. This is une­qual tre­at­ment accord­ing to § 75 para.1 BetrVG. Howe­ver, it is not only the tre­at­ment in the ren­tal com­pa­nies that poses a pro­blem. The equal tre­at­ment of LAC in user com­pa­nies also repeated­ly comes up against limits. Sin­ce the dis­patchers of the tem­pora­ry employ­ment agen­ci­es can­not be con­stant­ly on site with the deploy­ed LAK (Thiel, 2016), dif­fi­cul­ties ari­se in moni­to­ring the imple­men­ta­ti­on of equal tre­at­ment. If the affec­ted LACs them­sel­ves do not report pro­blems in the hirer com­pa­ny, it is very dif­fi­cult for the per­son­nel dis­patchers to reco­gni­ze une­qual tre­at­ment and take time­ly coun­ter­mea­su­res, sin­ce they are not regu­lar­ly, or in some cases not even, on site (Thiel, 2016).

Howe­ver, tem­pora­ry employ­ment agen­ci­es do not only have duties to ful­fill towards the LAC. As a ser­vice pro­vi­der, the com­pa­ny also has obli­ga­ti­ons to its cus­to­mers. The main obli­ga­ti­on here lies in the pro­vi­si­on of labor. The spe­cial fea­ture of this sup­plier rela­ti­ons­hip is cha­rac­te­ri­zed by the “sup­plied pro­duct”, name­ly the employees. Thus, the requi­re­ments that the cus­to­mer pla­ces on the per­son­nel ser­vice pro­vi­der dif­fer enor­mous­ly from tho­se of a pro­duct sup­plier. On the basis of the tem­pora­ry employ­ment con­tract, the tem­pora­ry employ­ment agen­cy under­ta­kes to make its employees avail­ab­le to the user com­pa­ny. As a rule, the sub­ject of the con­tract is not a spe­ci­fic employee. Ins­tead, the requi­re­ments that the LAC must ful­fill are spe­ci­fied (Pol­lert, 2011). Howe­ver, alt­hough the requi­red qua­li­fi­ca­ti­ons are clear­ly defi­ned in the tem­pora­ry employ­ment con­tracts, each per­son per­forms the tasks assi­gned to him or her dif­fer­ent­ly. This results in the core pro­blem of tem­pora­ry employ­ment: peop­le are orde­red and deli­ve­r­ed like goods (Breit­schei­del, 2010). The user com­pa­nies expect the LAK, who come to replace a regu­lar employee who has drop­ped out, to do the work exact­ly as their pre­de­ces­sors did (Thiel, 2016). Accord­in­gly, the tem­pora­ry employ­ment agen­cy is obli­ged to pro­vi­de repla­ce­ment ser­vices if the LAK do not per­form iden­ti­cal­ly. It is irrele­vant whe­ther it is respon­si­ble for the rea­son for the non-per­for­mance (Pol­lert, 2011). It should be empha­si­zed, howe­ver, that the tem­pora­ry employ­ment agen­cy can be held liable for the so-cal­led “poor per­for­mance”, but only wit­hin the scope of the pro­fes­sio­nal and per­so­nal sui­ta­bi­li­ty of the LAK pro­vi­ded. Howe­ver, the tem­pora­ry employ­ment agen­cy can­not be held liable for the per­for­mance of the work as such (Gut­mann & Kili­an, 2013).

In addi­ti­on, the tem­pora­ry employ­ment agen­cy is also obli­ged to com­ply with cer­tain noti­fi­ca­ti­on and repor­ting obli­ga­ti­ons vis-à-vis the user com­pa­ny. Accord­in­gly, the tem­pora­ry employ­ment agen­cy must inform the user com­pa­ny immedia­te­ly if the per­mit for com­mer­cial tem­pora­ry employ­ment loses its vali­di­ty, e.g. through with­dra­wal or non-rene­wal (Pol­lert, 2011).

In addi­ti­on to the afo­re­men­tio­ned obli­ga­ti­ons, tem­pora­ry employ­ment agen­ci­es also have rights, such as the right to give inst­ruc­tions to their employees. Sin­ce this right of direc­tion is split bet­ween the tem­pora­ry employ­ment agen­cy and the hirer in ANÜ, the right of direc­tion of the hirer is always sub­ject to the ori­gi­nal right of direc­tion of the tem­pora­ry employ­ment agen­cy (Ulb­er, 2015). Accord­in­gly, the tem­pora­ry employ­ment agen­cy has a supe­ri­or right to issue inst­ruc­tions to the LAC. Fur­ther rights ari­se from the con­trac­tu­al rela­ti­ons­hip with the assign­ment com­pa­ny. If, for examp­le, the assign­ment com­pa­ny is in arre­ars with pay­ments, the tem­pora­ry employ­ment agen­cy has a right of reten­ti­on (Pol­lert, 2011). This is expres­sed in the with­hol­ding of the LAK. Howe­ver, it should be noted that in this case the LAK do not work, but cos­ts are still incur­red by the tem­pora­ry employ­ment agen­cy due to the con­ti­nued pay­ment of wages (Pol­lert). Fur­ther­mo­re, the cus­to­mer can request the requi­red LAK from ano­t­her tem­pora­ry employ­ment agen­cy at any time. Thus, the right of reten­ti­on only has a minor effect in the ANÜ. Ano­t­her right of the tem­pora­ry employ­ment agen­cy is the pre­ma­tu­re ter­mi­na­ti­on of the employee lea­sing con­tract. The pre­re­qui­si­te for this is the sus­tai­ned non-ful­fill­ment of obli­ga­ti­ons on the part of the tem­pora­ry employ­ment agen­cy. In con­clu­si­on, it can be said that the tem­pora­ry employ­ment agen­cy has exten­si­ve obli­ga­ti­ons, while its rights vis-à-vis the hirer ari­se pri­ma­ri­ly from the hirer’s fail­u­re to com­ply with the con­tracts concluded.

- End of the excerpt of the mas­ter thesis -.

*For rea­sons of bet­ter reada­bi­li­ty, the simul­ta­ne­ous use of the lan­guage forms male, fema­le and diver­se (m/f/d) is omit­ted in the web ver­si­on. All per­so­nal desi­gna­ti­ons app­ly equal­ly to all genders.

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